Okic v. Fullerton Surgery Center, Ltd.

2019 IL App (1st) 181074
FIRST DIVISION
June 10, 2019
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
No. 1-18-1074
FERID OKIC, )
)
Plaintiff-Appellant, ) Appeal from the
) Circuit Court of
v. ) Cook County.
)
FULLERTON SURGERY CENTER, LTD., and )
ATHANASIOS DINIOTIS, M.D., a/k/a Thomas Diniotis, ) No. 14 L 008168
Individually and as an Agent of Fullerton Surgery Center, )
Ltd., )
) Honorable
Defendants ) Ronald J. Bartkowicz,
) Judge Presiding.
(Athanasios Diniotis, M.D., a/k/a Thomas Diniotis, )
Defendant-Appellee). )
)
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justices Pierce and Griffin concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Ferid Okic’s common bile duct was damaged during a routine gallbladder
removal surgery. This injury went undiagnosed for over a month, requiring corrective surgery
and significantly delaying Mr. Okic’s recovery. Mr. Okic sued his surgeon, Dr. Athanasios
Diniotis, alleging both that he negligently performed the surgery and that he was negligent in
providing postoperative care. Mr. Okic did not, however, retain an expert qualified to testify
regarding the applicable standard of care for performing gallbladder removal surgery.
No. 1-18-1074
¶2 Just before the trial began, the trial court granted several of Dr. Diniotis’s motions
in limine, including ones barring Mr. Okic from presenting any evidence related to the
performance of the surgery because of the absence of expert testimony on this issue. The jury
found against Mr. Okic and in favor of Dr. Diniotis on Mr. Okic’s remaining theory of
negligence.
¶3 On appeal, Mr. Okic challenges the trial court’s in limine rulings barring him from
presenting evidence related to the surgery itself and evidence that he contends would also have
supported his claim of postoperative negligence. Mr. Okic also argues that the court should have
granted his motion for a judgment in his favor or, in the alternative, for a new trial on his claim
of postoperative negligence.
¶4 For the reasons that follow, we conclude that the trial court’s ruling precluding Mr. Okic
from presenting any claim that Dr. Diniotis negligently performed the gallbladder removal was
equivalent to the granting of an untimely dispositive motion. It was improper for Dr. Diniotis to
present or for the trial court to entertain such a motion under the guise of a motion in limine.
Because it is clear from the record, however, that Mr. Okic could not have presented evidence to
support a claim of surgical negligence, we find no reversible error.
¶5 We further conclude that the trial court did not abuse its discretion in its other in limine
rulings and that the jury’s verdict in favor of Dr. Diniotis on his remaining claim of negligent
postsurgical care was supported by the evidence. Mr. Okic’s other arguments, which relate
exclusively to damages, need not be addressed since there was no finding of liability.
¶6 I. BACKGROUND
¶7 Mr. Okic was diagnosed with gallstones in May 2012 and consulted with Dr. Diniotis in
early August of that year regarding the need for an outpatient laparoscopic cholecystectomy
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(gallbladder removal surgery). Dr. Diniotis performed the surgery on August 18, 2012, and
continued to monitor Mr. Okic over the next month. By September 22, 2012, Mr. Okic was
jaundiced and bile was still collecting in a Jackson-Pratt drain left at the incision site rather than
flowing, as it should have, directly through the common bile duct to his small intestine.
¶8 Mr. Okic was admitted to Our Lady of Resurrection Hospital (Resurrection) for a series
of diagnostic tests, which revealed that his common bile duct had been severed. He was then
transferred to Rush University Medical Center (Rush) on September 27, 2012, for further
assessment. Mr. Okic was discharged on October 3, 2012, and returned to Rush on November
16, 2012, for corrective surgery and follow-up care by Dr. Edie Chan. He was finally cleared to
return to work at the end of January 2013.
¶9 On August 5, 2014, Mr. Okic sued Dr. Diniotis and Fullerton Surgery Center, Ltd.
(Fullerton), where his cholecystectomy was performed, for negligence and negligent infliction of
emotional distress. Fullerton settled the claims against it and is not a party to this appeal, but the
claims against Dr. Diniotis proceeded to trial.
¶ 10 A. Motions in Limine
¶ 11 One week before trial, the trial court granted a number of Dr. Diniotis’s motions in limine
to bar certain testimony and evidence. Several of these are at issue on this appeal.
¶ 12 Motions in limine Nos. 24 and 25 sought to bar Mr. Okic from offering any evidence that
the injury to his common bile duct was the result of surgical negligence or “mistake” on the part
of Dr. Diniotis. In support of these motions, Dr. Diniotis argued that a breach of the surgical
standard of care could only be established through the testimony of a qualified medical expert.
At argument, Mr. Okic’s counsel agreed that his expert witness, Dr. Carl Blond, would offer no
opinion regarding the applicable surgical standard of care. Mr. Okic’s counsel argued that such
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testimony was unnecessary, both because a lay person would know that a surgeon should not cut
the common bile duct during a gallbladder removal and because Mr. Okic could rely instead on
what his counsel characterized as an “admission” by Dr. Diniotis. The trial court disagreed and
granted the motions.
¶ 13 Motions in limine Nos. 21 and 27 sought to bar Mr. Okic from offering any evidence of
Dr. Diniotis’s “domestic circumstances,” including any evidence tending to show that Dr.
Diniotis was distracted by the fact that, in the month or two before Mr. Okic’s surgery, he
learned that his son had brain cancer. At her deposition, Mr. Okic’s sister-in-law, Elvira Okic,
testified that she had a conversation with Dr. Diniotis sometime after the surgery in which,
according to the motion, “he allegedly told her that he had made a mistake during the August 18,
2012, cholecystectomy and that he should [not] have been performing the procedure because his
son had recently been diagnosed with a brain tumor.” At his own deposition, Dr. Diniotis
acknowledged the timing of his son’s diagnosis, as well as the fact that his son passed away
approximately a year and a half later, but denied making any statements to Ms. Okic regarding
the effect, if any, of that situation on his performance as a doctor or surgeon.
¶ 14 The trial court granted these motions too, reasoning that evidence concerning Dr.
Diniotis’s state of mind during surgery was not relevant because Mr. Okic had failed in the first
place to establish either the relevant surgical standard of care or a breach of that standard. The
court rejected Mr. Okic’s argument that evidence of the doctor’s conversation with Ms. Okic was
still relevant to show that he was distracted during the postoperative period. The court noted that
Mr. Okic and his family were free to testify about any inattention or failure on Dr. Diniotis’s part
to promptly respond to their complaints but concluded that, absent any connection between his
son’s diagnosis and Dr. Diniotis’s postoperative conduct, introducing such evidence to show that
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the doctor’s performance suffered as a result of events in his personal life was speculative.
¶ 15 Finally, the court granted motions in limine Nos. 26, 28, and 29, all relating to damages,
in which Dr. Diniotis sought to bar evidence of damages not related to Mr. Okic’s postsurgical
care and testimony by an economist regarding the value of his future lost wages, on the grounds
that no medical testimony established that his injuries were permanent or ongoing.
¶ 16 B. Trial Testimony
¶ 17 A four-day trial was held in November 2017. The jury heard testimony from Mr. Okic
and members of his family, from Dr. Diniotis and Dr. Chan, and from competing expert
witnesses regarding the relevant postoperative standard of care. Mr. Okic’s medical records,
including notes made by Dr. Diniotis and records kept by Fullerton, Resurrection, and Rush,
were also entered into evidence, though they were not included in the record on appeal.
¶ 18 1. Dr. Diniotis
¶ 19 Mr. Okic first called Dr. Diniotis as an adverse witness. Dr. Diniotis testified that he went
to medical school in Greece and moved to the United States in 1977. At the time of trial he had
worked as a surgeon in Chicago for over 30 years. Dr. Diniotis agreed that his practice was a
“one-man operation” and “very busy.” He was the only doctor in the practice, and his wife was
his office manager.
¶ 20 Dr. Diniotis acknowledged that there was a language barrier between him and Mr. Okic,
a Bosnian refugee whose English is limited, but noted that Mr. Okic was always accompanied by
his brother, sister, or another family member, who Dr. Diniotis said spoke English “far better
than [Mr. Okic].”
¶ 21 After a period of observation following his cholecystectomy, Mr. Okic was released to
the care of his brother, Velid Okic, with instructions to keep the dressing on and to empty the
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Jackson-Pratt drain, left in his body to collect fluids, every four hours. Mr. Okic was given a note
telling his employer he could not return to work until August 24, 2012. Dr. Diniotis explained
that with a laparoscopic cholecystectomy, “the holes are very small, and people go back to work
quickly.” He expected Mr. Okic to be fully functioning within six days of his surgery.
¶ 22 Dr. Diniotis saw Mr. Okic a total of seven times in the month following the surgery.
Although Dr. Diniotis made no indication of an ongoing treatment plan for Mr. Okic in his notes,
he testified that he “was watching [Mr. Okic] very closely,” and “was really focused on the
[Jackson-Pratt] drainage.” Dr. Diniotis saw no reason to weigh Mr. Okic or take his blood
pressure following the surgery. He explained that his customary practice is to ask postoperative
patients about their temperature, food intake, and whether they are experiencing pain, and to only
document “the abnormal things.” If everything is fine with a patient, the doctor writes nothing
down in his notes.
¶ 23 A postoperative telephone assessment done by Fullerton staff on August 22 indicated
that, four days after his surgery, Mr. Okic was experiencing mild nausea but no vomiting. At that
time he reported bile drainage of 50 to 60 milliliters every four hours. Dr. Diniotis described this
as “a little excessive but still expected.” He did not do anything in response to this information
because there was, in his opinion, no need to.
¶ 24 On September 8, Dr. Diniotis noted that there was still bilious drainage, but that it was
“much less now,” and on September 15 he noted that there had been no drainage for two days.
He explained that this was good. But his notes from September 20 indicated that bile had begun
to drain again after the third day. None of these postoperative notes included any mention of pain
or any other complaints.
¶ 25 Dr. Diniotis said he was surprised when, on September 22, Mr. Okic appeared jaundiced,
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and he admitted him to the hospital right away. He explained that jaundice was a sign that there
was “some kind of obstruction *** in the common [bile] duct.” Dr. Diniotis agreed that his
notation for this visit was the first one in which he mentioned any issue or complication with
respect to Mr. Okic’s recovery.
¶ 26 Dr. Diniotis testified that he did not recall being shown a drainage log by Mr. Okic or his
family members. He insisted that, if the drainage had been excessive, he would have written that
down, “[s]o obviously that was not the case.” He agreed, however, that except for two to three
days around September 15, Mr. Okic experienced a bile leak for the entire month of September.
He insisted that there was no reason to do anything about this because Mr. Okic had no
significant complaints, “like pain, jaundice or peritonitis [inflammation].”
¶ 27 Dr. Diniotis agreed that Mr. Okic followed all of his instructions and never missed a
follow-up appointment. Although he also agreed that white stool and jaundice are indications of
a bile leak, he denied that Mr. Okic or his relatives told him as early as September 8 that Mr.
Okic was experiencing white stool. According to Dr. Diniotis, there was no indication on either
September 8 or September 15 that Mr. Okic had a damaged common bile duct.
¶ 28 Plaintiff’s counsel attempted to question Dr. Diniotis about Dr. Chan’s subsequent
conclusion that Mr. Okic’s common bile duct had been severed during the cholecystectomy
performed by Dr. Diniotis. But, as the following exchange demonstrates, the court’s pretrial
rulings put an end to this line of questioning:
“Q. It says ‘Transected bile duct.’ Do you see that?
A. I see that.
Q. What does that mean, sir, in your experience?
A. It means that the common [bile] duct had been transected.
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Q. Meaning cut?
A. Cut.
Q. Did anyone else have their instruments and tools on August 18th, 2012 at the
Fullerton Surgery Center on Mr. Okic other than yourself?
MR. NICKELS [(COUNSEL FOR DR. DINIOTIS)]: Objection, Your Honor,
relevance, prior Court order.
THE COURT: I agree. We are going back to what I suggested or instructed to the
jury. We are not going to focus in on the surgery except that it happened.
Q. So you don’t disagree with this pre and postoperative assessment, do you?
MR. NICKELS: Objection, Your Honor. Asked and answered.
THE COURT: Move on.”
¶ 29 Similarly, although the jury heard from Dr. Diniotis that cutting or injuring the common
bile duct is not something a surgeon would intentionally do during gallbladder removal surgery,
the trial court prevented Mr. Okic’s counsel from specifically questioning Dr. Diniotis regarding
the surgical standard of care:
“[COUNSEL FOR MR. OKIC:] And when you went to operate on Mr. Okic, your
intent was to remove the gallbladder, correct?
[DR. DINIOTIS:] That’s correct.
Q. Your intent was not to do anything with the common bile duct, correct?
A. That’s correct.
Q. And, in fact, the standard of care is that that is to be separated, identified and
avoided?
MR. NICKELS: Objection, Your Honor.
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THE COURT: We are not going to discuss this.
MR. PERAICA [(COUNSEL FOR MR. OKIC)]: I am just setting the
background, Judge.
THE COURT: No, no, no. We are not going to discuss the procedure. We are
going to focus on the fact that there was a complication and that it required postoperative
care which you are saying was inadequate.
This is a given. We have [been] given the fact there was a complication. ***
MR. PERAICA: Judge, I am just trying to illustrate for the jury—
THE COURT: We have gone over this. *** Please move on.”
¶ 30 The fact that bile was again present in Mr. Okic’s Jackson-Pratt drain after a few days
with no drainage did not immediately suggest to Dr. Diniotis that there was a common bile duct
injury. He explained that pressure generated by the final stages of the healing process will
sometimes force out more drainage. In Dr. Diniotis’s opinion, the injury to Mr. Okic’s common
bile duct was “just one of the complications that [can] happen during surgery,” and he “did
exactly what the standard of care requires” of a reasonably careful general surgeon providing
postoperative care.
¶ 31 2. Ferid Okic
¶ 32 Mr. Okic gave his own account, through an interpreter, of the postoperative care he
received from Dr. Diniotis. Mr. Okic recalled that he “could not eat” and “lost [a] substantial
amount of weight” during the period of time between his surgery on August 18 and his
hospitalization on September 22. He explained that he was “feeling very weak” and that, for
[t]he whole month of August [he] was basically lying down” and “lack[ed] energy to move or to
do anything.”
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¶ 33 Mr. Okic could not remember exactly when he became jaundiced but recalled that his
family noticed it before he did. When prompted to say whether it might have been 20, 22, or 23
days after his surgery, he simply stated “I do not recall.”
¶ 34 According to Mr. Okic, Dr. Diniotis only asked about his stool on two occasions, on
September 22, 2012, when Mr. Okic was admitted to the hospital, and one other time, with Mr.
Okic’s sister-in-law translating for him. He recounted those occasions as follows:
“A. Yes, on September 22nd. That is correct. And that I know. But before that he
did not ask. Only one other time he asked. And that was when I was there with my sister-
in-law. He did ask what kind of stool I am having and she told him, she translated for
him, but then he did not do anything about that.
Q. And on September 22 Dr. Diniotis instructed you to go to the hospital?
A. Actually that day he said that I should go to the hospital on Monday. He told
that to his nurse or his secretary. And then she turned around and then she said to doctor
he is not looking good. He can die before Monday so he should be admitted right away.”
¶ 35 3. Elvira Okic
¶ 36 Just before Mr. Okic’s sister-in-law Elvira Okic took the stand, the trial judge reaffirmed
his ruling barring testimony relating to a conversation she purportedly had with Dr. Diniotis, in
which he told her that he was under a lot of stress regarding his son’s cancer diagnosis and
should not have performed Mr. Okic’s surgery that day. Plaintiff’s counsel moved orally for the
testimony regarding that conversation to be admitted, not to establish the doctor’s mental state,
but to show that he admitted to Ms. Okic that he made a mistake during the surgery. The trial
court denied the request, saying “If he said I made a mistake in my postoperative procedure, that
would be different but not in regard to the surgery, no.” Defense counsel agreed that plaintiff’s
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counsel should ask Ms. Okic leading questions on direct examination, to ensure that she did not
refer to the conversation about Dr. Diniotis’s son.
¶ 37 Ms. Okic told the jury that she observed Mr. Okic both before and after his surgery, and
that “[a]fter he had surgery he looked worse than before,” he was weak, in pain, and “just not
himself.” Ms. Okic took Mr. Okic to an appointment with Dr. Diniotis on September 8, 2012—
20 days after his surgery—and served as his translator on that occasion because her English was
better than his. Ms. Okic testified that at this appointment, which lasted approximately 15
minutes, Mr. Okic told Dr. Diniotis, through her, that in the days leading up to September 8 his
stool was white, that he was in a lot of pain, and that he was worried because he was having a
large volume of bile drainage. Ms. Okic said that the doctor’s response “was kind of dismissive”
and “[h]e kind of indicated that that’s normal.” Ms. Okic was sure that she informed Dr. Diniotis
then of the condition of Mr. Okic’s stool. At that same visit Dr. Diniotis or his staff also emptied
Mr. Okic’s drain and changed the dressing. Ms. Okic noticed a lot of brownish fluid in the bag.
According to her, Dr. Diniotis reassured her that it was “a lot of drainage but it’s okay.”
¶ 38 The second time Ms. Okic was present when Dr. Diniotis examined Mr. Okic was on
September 22, when Mr. Okic was admitted to the hospital. She described for the jury how Mr.
Okic’s condition had deteriorated between the two visits: “He was weaker. He was [in] more
pain. His skin was pale, yellowish. He had [a] fever. He was really feeling bad.”
¶ 39 Ms. Okic said she had seen the drainage log that Mr. Okic’s sister Elvida Livadic kept for
him and observed that it was “extremely detailed,” with “dates, times, and the amount of
drainage.” Ms. Okic did not ever personally show this log to Dr. Diniotis, but she believed it was
shown or communicated to him.
¶ 40 On cross-examination, Ms. Okic acknowledged that she did not independently remember
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the date of the September 8 visit, explaining “[l]ater on we realized,” it was that day, based on
the dates that Mr. Okic’s brother, who normally took him to his appointments, had been on
vacation. Ms. Okic also recalled that the visit was about two weeks before Mr. Okic was
admitted to the hospital, which corresponded with the September 8 date. Ms. Okic did not
believe that there ever was a time, between his surgery and his admission to the hospital on
September 22, when Mr. Okic’s drainage decreased or stopped.
¶ 41 4. Elvida Livadic
¶ 42 Mr. Okic’s sister, Ms. Livadic, testified that Mr. Okic lives in the same building as her,
she sees him every day, and in the weeks following his gallbladder removal surgery, she served
as his caretaker. Ms. Livadic always recorded the date, time, and amount of fluid that she
emptied from Mr. Okic’s Jackson-Pratt drain on a log, recalling that it was sometimes as much as
40 to 60 milliliters. Around the middle of September, she gave that log to Mr. Okic to give to Dr.
Diniotis. She also advised Mr. Okic, when he first told her his stool was white “that he must tell
the doctor and ask if that [was] normal.” She believed this was in the beginning of September but
could not recall the exact date.
¶ 43 Ms. Livadic had lunch with Mr. Okic on September 18, 2012, and recalled being very
concerned with his appearance at that time, stating: “He was yellow. His eyes were yellow. His
skin was yellow. His face, whole body. I got very scared when I saw that.” According to her, Mr.
Okic had also been vomiting that day, had had a fever off and on, and the drainage from the
Jackson-Pratt drain was 20 or 30 milliliters of fluid. Although at other times the fluid may have
appeared “light reddish” in color, she said this time it was “[l]ike blood red.” She called
Fullerton to see if Mr. Okic could get an appointment with Dr. Diniotis that same day, but he did
not meet with the doctor again until two days later, on September 20. Ms. Livadic recalled that,
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by September 22, when Mr. Okic was finally admitted to the hospital, he was “in a very, very
bad condition.”
¶ 44 5. Dr. Carl Blond
¶ 45 At the time of trial Mr. Okic’s expert, Dr. Blond, had practiced as a doctor for over 30
years, was board certified in internal medicine, and worked as the chief hospitalist at a county
hospital in San Antonio, Texas. Dr. Blond explained that a hospitalist is the “attending doctor” in
charge of a hospital patient; the one who calls on other doctors as needed to assist with the
patient’s care and who coordinates discharge with the patient’s primary doctor and any
specialists who will continue to see the patient.
¶ 46 Dr. Blond discussed the acronym “SOAP,” used by doctors when they make their rounds
on patients. It entails a doctor asking a patient about his or her subjective complaints (“S”),
collecting objective data like vital signs (“O”), assessing what is wrong with the patient (“A”),
and formulating a plan for treatment (“P”). Dr. Blond explained that when this methodology is
followed, the result is “an organized note which another doctor can look at and see what’s going
on.” Not only is this an accepted procedure, but notes taken in this manner are now often
required by electronic medical records systems. If any section of the SOAP rubric is not filled in,
the system will consider the note to be incomplete. The majority of notes that Dr. Blond sees
“are based on this type of system.”
¶ 47 Dr. Blond also testified that biliary disease is very common and in his career he has
provided postoperative care to hundreds of patients following gallbladder removal surgery.
According to Dr. Blond, 90% of such surgeries are laparoscopic. If there are no complications,
pain usually subsides within a day and biliary drainage within a few days. “There may be some
variation” in the amount of drainage, “but you expect it to progressively improve as the area
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heals up and the inflammation goes down.” Dr. Blond testified that Mr. Okic’s report to
Fullerton of 50 to 60 milliliters of drainage every four hours on August 22—four days
postsurgery—should have concerned Dr. Diniotis and caused him to order tests to see if there
was a serious bile leak.
¶ 48 Dr. Blond explained that bile is excreted by the liver, through the bile duct, to the
stomach to aid in digestion. A blockage or leak disrupts this flow, resulting in elevated bilirubin
levels, very pale or white stool, and progressively worsening jaundice. When Mr. Okic was
admitted to the hospital on September 22, his bilirubin level was 12.5, the upper limit for a
normal result being a reading of only 1.
¶ 49 Dr. Blond reviewed Mr. Okic’s medical records in this case and the deposition transcripts
of Mr. Okic, his family members, and Dr. Diniotis. Consistent with the report he prepared in this
case, it was Dr. Blond’s opinion, to a reasonable degree of medical certainty, that Dr. Diniotis
deviated from the postoperative standard of care. As Dr. Blond explained:
“When I reviewed the records I felt there was a marked deviation due to multiple visits
with a bile leak and no diagnostic workup. There was a marked delay in addressing a
complication—a known complication of biliary surgery where there is a persistent leak
which requires a prompt evaluation and treatment.
The patients that have biliary surgery that I see in a hospital, we get laboratory on
them and what we expect is to see that bile drainage gradually taper away fairly rapidly,
certainly within a week. And when it’s prolonged, we worry. One of the complications of
bile duct surgery is, from a number of sources, leaking of the bile. Sometimes it can be
fixed by a gastroenterologist. Sometimes it requires surgery. Sometimes a radiologist can
be involved.
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But you—when you have persistent drainage into your—into the Jackson Pratt
drain that’s not going away, particularly if it’s bilious or, you know, dark brown or
greenish brown, you have—after a relatively short period of time and it’s persisting after
a week, you have to pursue possible diagnoses; and that means not just following up
[with] a patient, but doing radiographic studies, checking laboratory tests, doing a careful
physical exam of the abdomen, and I felt that this was not done up to the standard of care
in this case.”
¶ 50 Dr. Blond said that he would have ordered diagnostic tests for Mr. Okic by August 25 at
the latest because, “if a patient isn’t doing well and it’s been a week and they’re still draining,
you want to pursue an evaluation.” According to Dr. Blond, most patients are “back to fully
functional and back at work” within seven days.
¶ 51 On cross-examination, Dr. Blond acknowledged that at his deposition he testified that he
prepared his report in this case after having reviewed Mr. Okic’s medical records from Fullerton,
Resurrection, and Rush, but not Dr. Diniotis’s own notes. Dr. Blond explained that he may have
mistakenly provided that answer based on the list of materials he included in the report. He
testified that in actuality he “may well have looked at [Dr. Diniotis’s] notes” before rendering his
opinions. Dr. Blond insisted, however, that he would have reached the same conclusion even
without the notes, based on Mr. Okic’s condition when he was finally admitted to the hospital.
¶ 52 Dr. Blond acknowledged that he is a frequent expert witness, reviewing 15 to 30 cases
per year. He has been deposed approximately 500 times and has testified at trial between 40 and
60 times, all across the country. However, this was the first case he had ever testified in
concerning a gallbladder removal. His specialty is in fact nephrology, the study of the kidney.
Although he characterized damage to the common bile duct during gallbladder removal surgery
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as a “known complication,” he also considered it relatively “uncommon,” having himself seen
only two cases in the last five years.
¶ 53 Dr. Blond agreed that not every patient will be fully recovered from gallbladder surgery
within a week but that “you would expect progressive improvement” during that time frame and
that is what a doctor operating within the standard of care would be looking for. He agreed that
in Mr. Okic’s case, the correct tests were eventually ordered, the correct diagnosis was made,
and all of the correct treatment was provided. In his opinion, however, all of this should have
happened about 28 days sooner.
¶ 54 6. Dr. Edie Chan
¶ 55 Portions of the video evidence deposition of Dr. Chan, a board-certified surgeon at Rush,
were also played for the jury. Dr. Chan’s testimony, consistent with Rush’s records, was that Mr.
Okic was admitted on September 27, 2012, for a six-day hospital stay. Mr. Okic presented with
“right upper quadrant abdominal pain, jaundice, a bilirubin of 12, and elevated liver enzymes.”
He was prescribed medication for his pain and two diagnostic tests were performed—an
endoscopic retrograde cholangiopancreatography and a percutaneous transchepatic
cholangiography. Mr. Okic was diagnosed with an “extrahepatic biliary obstruction [a blockage
outside of the liver] due to [a] bile duct injury at [an] outside hospital.”
¶ 56 Mr. Okic was discharged from Rush on October 3 and returned for surgery to reconnect
his bile duct to his intestines on November 16, 2012. At his final visit with Dr. Chan, on
December 18, 2012, Mr. Okic had no complaints and his scar had healed. He was told he could
return to work on January 28, 2013.
¶ 57 7. Dr. Eric Woo
¶ 58 Dr. Eric Woo, a board-certified general surgeon for 10 years, testified as Dr. Diniotis’s
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expert. Dr. Woo has provided postoperative care for hundreds of patients following gallbladder
removal surgery and teaches postoperative care to doctors in training. Dr. Woo has served as
chair of the department of surgery for the hospital where he works in northwest Indiana, which
has a surgical staff of between 100 to 150. He was also recently invited to become a fellow in the
American College of Surgeons. Dr. Woo stated that he was familiar with both the postoperative
standard of care for gallbladder removal patients and the symptoms of a common bile duct
injury. In this case he reviewed Mr. Okic’s medical records and the deposition testimony of Mr.
Okic and his family members, Dr. Diniotis, and Dr. Blond. Dr. Woo’s expert opinion, within a
reasonable degree of medical certainty, was that, in providing postoperative care to Mr. Okic
from August 18, 2012, to September 22, 2012, Dr. Diniotis adhered to the relevant standard of
care.
¶ 59 Dr. Woo acknowledged that, at all but one of Mr. Okic’s seven postoperative visits, Dr.
Diniotis noted that there was bile drainage in the Jackson-Pratt drain. But the doctor’s notes also
included other information, such as “appetite good, abdomen soft, [and] drainage much less
now.” Dr. Woo explained that, although the “S-O-A-P” acronym is something medical students
are taught to remind them what questions to ask a patient during follow-up visits, not following
the methodology precisely in one’s notetaking is not a deviation from the standard of care.
¶ 60 Dr. Woo then went through each of the seven follow-up visits that Mr. Okic had with Dr.
Diniotis, explaining that in each of them Dr. Diniotis met the standard of care because Mr. Okic
appeared to be improving and the doctor continued to monitor his recovery closely. Dr. Woo
testified that, contrary to Dr. Blond’s views, the normal recovery time for a laparoscopic
cholecystectomy is not necessarily one week; nor does the standard of care necessarily require
diagnostic testing whenever there is continued bile leakage 10 days after surgery. In Dr. Woo’s
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opinion, Dr. Diniotis provided appropriate postoperative care to Mr. Okic. He saw Mr. Okic
frequently, regularly documented those appointments, and had a plan for Mr. Okic’s continued
care. When signs of a common bile duct injury presented themselves, Dr. Diniotis promptly had
Mr. Okic admitted to the hospital for diagnostic testing. Dr. Woo testified that what happened
next, including the reconstruction surgery, would still have been necessary even if the common
bile duct injury had been diagnosed sooner.
¶ 61 On cross-examination, Dr. Woo confirmed that he had never testified as an expert
witness before. He could not recall, in his 10 years of practice, a situation where a bile duct had
been cut or damaged during gallbladder removal surgery. Dr. Woo agreed that his report in this
case was prepared, with his help and ultimate approval, by defense counsel. He also
acknowledged that it is important for a doctor’s notes to be both accurate and complete and that
Dr. Diniotis’s postoperative notes did not “follow an exact SOAP note.” He explained that the
level of detail doctors include in their notes “varies greatly” and notes like those taken by Dr.
Diniotis are typical for some practitioners.
¶ 62 The jury deliberated and returned a verdict in favor of Dr. Diniotis and against Mr. Okic
on both counts. Mr. Okic filed a posttrial motion arguing that he was entitled to a judgment
notwithstanding the verdict or, in the alternative, to a new trial. Following briefing and argument,
the trial court denied the motion and entered judgment on the jury’s verdict.
¶ 63 II. JURISDICTION
¶ 64 The trial court entered judgment on the jury’s verdict on November 17, 2017, and denied
Mr. Okic’s timely posttrial motion on April 17, 2018. Mr. Okic appealed on May 15, 2018. We
have jurisdiction pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff.
July 1, 2017), governing appeals from final judgments entered by the circuit court in civil cases.
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¶ 65 III. ANALYSIS
¶ 66 A. Motions in Limine
¶ 67 In his challenges to the trial court’s pretrial rulings, Mr. Okic raises two claims of error:
(1) he should not have been completely barred from presenting evidence of surgical negligence
to the jury and (2) his sister-in-law, Elvira Okic, should have been allowed to tell the jury about
the conversation she had with Dr. Diniotis concerning the effect of his son’s recent medical
diagnosis on his ability to do his job. We consider each ruling in turn.
¶ 68 1. Taking the Issue of Surgical Negligence Away From the Jury
¶ 69 The trial court in this case concluded that, absent any expert testimony establishing the
applicable surgical standard of care, what happened during Mr. Okic’s gallbladder removal
surgery was irrelevant. The jury knew that Mr. Okic’s common bile duct was injured during that
surgery and knew that this condition, once detected, required corrective surgery, but the court
prevented Mr. Okic’s counsel from eliciting any testimony regarding why or how the injury
occurred.
¶ 70 It is well settled that in a medical malpractice action, the plaintiff bears the burden of
proof for establishing the proper standard of care against which the defendant’s conduct is
measured, the unskilled or negligent failure to comply with the applicable standard, and a
resulting injury proximately caused by the defendant’s want of skill or care. Purtill v. Hess, 111
Ill. 2d 229, 241-42 (1986). Johnson v. Ingalls Memorial Hospital, 402 Ill. App. 3d 830 (2010). It
is also established that a plaintiff must generally present the testimony of a qualified expert to
satisfy his burden of establishing the standard of care. Snelson v. Kamm, 204 Ill. 2d 1, 43-44
(2003). In assessing whether proper expert testimony has been offered, an expert qualified in one
area may not be qualified in another area. See Northern Trust Co. v. Upjohn Co., 213 Ill. App. 3d
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390, 406-07 (1991) (holding that an emergency physician was not competent to testify regarding
the standard of care for an obstetrician in a gynecological ward).
¶ 71 Here, it was undisputed that Mr. Okic’s only medical expert, Dr. Blond, was not board-
certified in general surgery, had never performed a gallbladder removal surgery, and was—by
his own admission—unable to provide testimony regarding the applicable surgical standard of
care or whether the injury to Mr. Okic’s common bile duct was caused by a deviation from that
standard of care. In lieu of the requisite expert testimony, Mr. Okic argued that (1) lay jurors
could appraise Dr. Diniotis’s conduct without the aid of expert testimony and (2) Dr. Diniotis’s
comments to Elvira Okic amounted to an admission that he breached the surgical standard of
care. The trial court correctly concluded that these arguments lacked merit as a matter of law.
¶ 72 Prairie v. University of Chicago Hospitals, 298 Ill. App. 3d 316 (1998), cited by Mr.
Okic for the proposition that lay jurors can, in limited circumstances, substitute their own
common sense for expert testimony, did not involve a surgical standard of care. The plaintiff in
that case was put on bed rest following back surgery. Id. at 319. When the plaintiff’s doctor
changed his order to “ ‘increase activity’ ” and “ ‘up as tolerated with assist,’ ” the defendant
nurse was alleged to have forcibly pulled the plaintiff—who was yelling and pleading that she
was in pain and “was going to throw up or faint”—out of bed and tied her to a chair while she
made the patient’s bed. Id. at 319-20. This was clearly not in keeping with the doctor’s
instructions, and the court concluded that, “under the particular circumstances of [the] case, the
alleged negligence [was] so grossly apparent that a layperson [could] readily appraise it using his
or her everyday knowledge.” Id. at 326.
¶ 73 Far more in keeping with the facts of this case is Walski v. Tiesenga, 72 Ill. 2d 249
(1978). Although our supreme court noted in that case that expert testimony is not always
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required, it went on to find that the kind of medical malpractice case presented there was “not the
type of situation in which the common sense of laymen could provide the standard of care.” Id.
at 257. Walski, like this case, involved a surgery in which a piece of anatomy was inadvertently
and incorrectly severed; the surgeon failed to identify the “left recurrent laryngeal nerve” during
thyroid surgery and cut it, resulting in vocal cord paralysis. Id. at 252, 255, 257. Our supreme
court contrasted that type of situation from malpractice claims in which expert testimony may
not be necessary, such as “sponges left in the abdomen, instruments left after surgery, and X-ray
burns.” Id. at 257. Here, even Mr. Okic’s own expert, Dr. Blond, acknowledged that injury to the
common bile duct, although something to be avoided, is a “known complication” of gallbladder
removal surgery. Whether and when the presence of such a complication is the result of medical
malpractice is not something a lay juror can decide without expert testimony.
¶ 74 The trial court also properly refused to treat what Dr. Diniotis purportedly said to Ms.
Okic as an admission by the doctor that could substitute for such expert testimony. A comment
by the doctor that, in hindsight, he felt he was too distracted at the time of the surgery and should
not have gone ahead with it suggests why he may have deviated from the standard of care, but it
is not the same as an admission that he did deviate from that standard. And even if—as plaintiff’s
counsel attempted to reframe the issue at oral argument before this court—the admission was
that Dr. Diniotis deviated from the standard of care even by going ahead with the surgery when
he may have been distracted, Mr. Okic still had no expert to establish that such a deviation was
the cause of Mr. Okic’s injury. See Hemminger v. LeMay, 2014 IL App (3d) 120392, ¶ 15 (to
establish proximate cause in a medical malpractice case, a plaintiff must prove that the
defendant’s negligence “more probably than not” caused the plaintiff’s injury (internal quotation
marks omitted)).
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¶ 75 Ms. Okic’s deposition was not included in the record on appeal. All we know of what she
said comes from defense counsel’s summary of her testimony in Dr. Diniotis’s motion in limine:
that Dr. Diniotis purportedly told Ms. Okic that “he had made a mistake during the August 18,
2012, cholecystectomy and that he should [not] have been performing the procedure because his
son had recently been diagnosed with a brain tumor.” Mr. Okic does not dispute this
characterization and has pointed to nothing in the record to clarify or add to it. On its own, the
paraphrased testimony can in no way be considered a clear admission establishing the applicable
surgical standard of care, a breach of that standard, and proximate causation.
¶ 76 The trial court’s reasoning on these points was thus legally correct. This reasoning may
have formed an appropriate basis, earlier in the case, on which to grant a motion for partial
summary judgment in Dr. Diniotis’s favor. It likewise would have been an appropriate basis for a
directed verdict in the doctor’s favor at the conclusion of Mr. Okic’s case-in-chief. Procedurally,
however, we are troubled by the use of a motion in limine to effectively dispose of a large
portion of this case on the eve of trial.
¶ 77 As this court made clear in Cannon v. William Chevrolet/Geo, Inc., 341 Ill. App. 3d 674,
681 (2003), “[m]otions in limine are not designed to obtain rulings on dispositive matters but,
rather, *** to obtain rulings on evidentiary matters outside the presence of the jury.” (Emphasis
in original.) In Cannon, the defendant car dealership filed a motion in limine seeking to bar any
evidence at trial that it had refused to repair the plaintiff’s vehicle, on the grounds that she had
failed to give proper notice of her warranty claims. Id. We concluded that a motion in limine was
“not the proper vehicle for the relief sought”—i.e., the dismissal of entire claims as a matter of
law—and that the defendant had “misunder[stood] the purpose” of such a motion. Id.
¶ 78 Here, although presented, argued, and ruled upon as motions in limine, Dr. Diniotis’s
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motions in limine Nos. 24 and 25—like the motion presented in Cannon—asked the trial court to
do more than bar evidence from a specific source. Motion in limine No. 24 asked the court “to
bar any evidence, testimony, questioning, argument or innuendo that Dr. Diniotis was negligent
in performing the August 18, 2012 cholecystectomy and/or Dr. Diniotis negligently caused Mr.
Okic’s common bile duct injury.” (Emphasis added.) Motion in limine No. 25 asked the court to
bar all “evidence, testimony, questioning or argument that Dr. Diniotis ‘made a mistake’ during
the August 18, 2012 surgery.” These were not evidentiary rulings but rulings that disposed of an
entire theory of liability. The trial court judge acknowledged as much. Sustaining an objection to
a portion of Dr. Chan’s deposition, in which the doctor was asked about what happened during
Mr. Okic’s gallbladder removal surgery, the court stated “we have ruled that that was not going
to be part of the cause of action except for historical purposes.” (Emphasis added.)
¶ 79 A dispositive motion filed a week before trial is plainly untimely. See 735 ILCS 5/2-
1005(c) (West 2016) (providing the nonmovant with an opportunity to demonstrate the factual
basis for his complaint or to establish the existence of one or more genuine issues of material
fact); Cook County Cir. Ct. R. 2.1(f) (Aug. 21, 2000) (providing that “except by prior leave of
court and for good cause shown,” all motions for summary judgment “shall be filed and duly
noticed for hearing such that the motion comes before the court for initial presentation and entry
of a briefing schedule not later than forty-five (45) days before the trial date”).
¶ 80 Here, although Dr. Blond certainly indicated in the report he prepared shortly after the
complaint in this case was filed that he would render opinions at trial on both the surgical and
postsurgical standards of care, it was clear to all concerned by the time of his deposition in early
August 2017 that Dr. Blond had “no intention of reviewing if there was some type of surgical
error” in this case. That was still over three months before the trial began.
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¶ 81 It is generally reversible error when a trial court grants an untimely motion for summary
judgment. As in Silverstein v. Brander, 317 Ill. App. 3d 1000, 1005 (2000), it may be apparent
from the record that a party has “used the in limine procedure solely to avoid the requirements
for dispositive motions, although they knew [their] motion was, in effect, a summary judgment
motion.” Or, as in Peterson v. Randhava, 313 Ill. App. 3d 1, 10-11 (2000), where the scope of
discovery was narrowly tailored, it may be impossible to say what countervailing evidence the
nonmovant might have presented if given notice and time to sufficiently respond to the
dispositive motion.
¶ 82 In rare cases, however, granting an untimely dispositive motion styled as a motion
in limine will simply result in no prejudice. We recognized this possibility in Seef v. Ingalls
Memorial Hospital, 311 Ill. App. 3d 7 (1999). The plaintiffs in that case sued their hospital and
doctor for the wrongful death of their stillborn son, alleging that the hospital’s nurses should
have conveyed certain information to the doctor sooner and the doctor in turn should have
decided sooner to deliver the baby by caesarean section. Id. at 9-11. One week before trial, the
hospital filed a motion in limine to bar evidence that its nurses had deviated from the standard of
care, on the basis that the plaintiffs had no expert who would testify that such deviations caused
the baby’s death. Id. at 11-12. The trial court granted the motion and the hospital immediately
sought and was granted dismissal of the claim against it for a lack of proximate cause. Id. at 12.
¶ 83 Although not convinced that the motion in limine in Seef was really an untimely motion
for summary judgment, we assumed, arguendo, that even if it was, this was “not [a] ground for
reversal where *** no injustice [had] been done to anyone.” (Internal quotation marks omitted.)
Id. at 18. Because the plaintiffs had no expert testimony to prove an essential element of their
case, there were “no genuine issues of material fact for a jury to consider.” Id. at 18-19.
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¶ 84 The same is true here. Mr. Okic took discovery on what happened during his
cholecystectomy. He knew what all of the witnesses in the case had said at their depositions
about that procedure. If there was any other evidence to present or testimony he hoped to elicit at
trial that could have properly supported his claim that his common bile duct was injured as a
result of Dr. Diniotis’s surgical negligence, Mr. Okic had every reason to raise that evidence or
anticipated testimony with the trial court in response to the motion in limine.
¶ 85 In sum, the trial court erred by granting Dr. Diniotis’s motions in limine Nos. 24 and 25.
The motions were improper and untimely dispositive motions. On the record presented, however,
that error does not require reversal because it resulted in no prejudice. As we recognized in Seef,
“[t]he law does not require the doing of a useless act.” (Internal quotation marks omitted.) Id. at
20. As we noted was possible in Seef, here it is clear that the improper use of motions in limine to
obtain dispositive rulings resulted in no actual prejudice to Mr. Okic.
¶ 86 2. Dr. Diniotis’s Purported Admission
¶ 87 Mr. Okic also argues that even if the statement by Dr. Diniotis did not establish a breach
of the surgical standard of care, Ms. Okic should still have been allowed to tell the jury what the
doctor told her as evidence of his mental and emotional state during and after the surgery. It is
within the discretion of the trial court to decide whether evidence is relevant and admissible for a
particular purpose, and a reviewing court will not disturb the circuit court’s decision absent a
clear abuse of that discretion. In re Marriage of Bates, 212 Ill. 2d 489, 522 (2004). An abuse of
discretion occurs only where no reasonable person would take the position adopted by the trial
court. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167 (2003).
¶ 88 We cannot find that exclusion of this evidence was an abuse of discretion. Where, as
here, a breach of the standard of care cannot legally be shown, evidence tending to show why a
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doctor may have breached the standard is simply not relevant. Given Mr. Okic’s failure to
establish the relevant surgical standard of care, the trial court did not abuse its discretion by
barring testimony concerning the purported conversation between Ms. Okic and Dr. Diniotis.
¶ 89 Mr. Okic also argues that this conversation was relevant to show that Dr. Diniotis
continued to be distracted by his son’s condition during the period of time that he provided
postoperative care to Mr. Okic. But defense counsel represented to the trial court that, at her
deposition, Ms. Okic only related the doctor’s distraction to the time of the surgery. Counsel for
Mr. Okic did not refute this, and there is no other summary of the testimony in the record. Mr.
Okic has not carried his burden of demonstrating to us that the trial court abused its discretion in
disallowing the evidence for this purpose.
¶ 90 B. Sufficiency of the Evidence Supporting the Jury’s Verdict
¶ 91 On Mr. Okic’s claim of postoperative negligence—the portion of his case that did go to
trial—Mr. Okic challenges the trial court’s denial of his posttrial motion for a directed verdict or,
in the alternative, for a new trial. Although both requests concern the sufficiency of the evidence,
different legal standards govern the two forms of relief.
¶ 92 A directed verdict or judgment n.o.v. is proper “when all of the evidence, when viewed in
its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no
contrary verdict based on that evidence could ever stand.” (Emphasis added and internal
quotation marks omitted.) Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 100 (2010). “In
ruling on a motion for a judgment n.o.v., a court does not weigh the evidence, nor is it concerned
with the credibility of the witnesses; rather it may only consider the evidence, and any inferences
therefrom, in the light most favorable to the party resisting the motion.” Maple v. Gustafson, 151
Ill. 2d 445, 453 (1992). If “reasonable minds might differ as to inferences or conclusions to be
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drawn from the facts presented,” then a directed verdict is inappropriate. Pasquale v. Speed
Products Engineering, 166 Ill. 2d 337, 351 (1995). We review the denial of a directed verdict
de novo. Lazenby, 236 Ill. 2d at 100.
¶ 93 A motion for a new trial, by contrast, asks the court to set aside the verdict and order a
new trial if, after weighing the evidence, it concludes that “the verdict is contrary to the manifest
weight of the evidence.” (Internal quotation marks omitted.) Id. “A verdict is against the
manifest weight of the evidence where the opposite conclusion is clearly evident or where the
findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.”
(Internal quotation marks omitted.) Maple, 151 Ill. 2d at 454. Because a motion for a new trial
requires a weighing of the evidence, we defer to the trial court’s judgment; “[w]e will not reverse
a court’s ruling on a motion for new trial unless it is affirmatively shown that the trial court
clearly abused its discretion.” Lazenby, 236 Ill. 2d at 101.
¶ 94 Here, Mr. Okic’s motion was properly denied on both grounds. The evidence presented at
trial not did not overwhelmingly favor Mr. Okic but, in fact, rested on credibility findings that
were within the province of the jury.
¶ 95 In this medical negligence case, Mr. Okic was required to “establish the standard of care
by which to measure the physician[’s] conduct, and prove, through affirmative evidence, that the
defendant[ ] [was] negligent and that the negligence proximately caused [his] injury.” Bosco v.
Janowitz, 388 Ill. App. 3d 450, 459 (2009). Mr. Okic insists that we must disregard Dr. Woo’s
testimony because it has “no probative force” and does not qualify as “competent evidence,” but
in support of this evidence he merely recites his own expert’s conflicting testimony. As we have
stressed, “[w]here the parties offer conflicting medical testimony regarding the applicable
standard of care and [the] defendant’s breach of that standard, the jury is uniquely qualified to
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resolve the conflict.” Swaw v. Klompien, 168 Ill. App. 3d 705, 711 (1988). Such is the case here,
where Dr. Blond and Dr. Woo presented two different views on the applicable standard of
postsurgical care.
¶ 96 The result in this case also turned on conflicting lay testimony regarding when Dr.
Diniotis was told that Mr. Okic was experiencing symptoms like severe pain, jaundice, and white
stools. Mr. Okic and Ms. Okic testified that they made Dr. Diniotis aware of such symptoms as
early as September 8, 2012. Dr. Diniotis testified that, according to his notes, he did not receive
this information until September 22, when he promptly admitted Mr. Okic to the hospital for
diagnostic testing.
¶ 97 The jurors in this case were thus asked to make classic credibility determinations, and we
will not substitute our own judgment for theirs in such matters. Mr. Okic has simply not met the
high standards for either a judgment n.o.v. or a new trial.
¶ 98 IV. CONCLUSION
¶ 99 For the reasons stated above, we affirm the judgment of the trial court on the jury’s
verdict in favor of Dr. Diniotis. Although Mr. Okic also challenges certain limitations the circuit
court placed on the evidence of damages he was able to present at trial, he concedes that these
issues are only relevant if we reverse and remand the case for a new trial. Because we decline to
do so we do not reach them.
¶ 100 Affirmed.
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